Family law – how to settle your differences without going to court

Whether you are married, in a civil partnership, or cohabiting, splitting up can be an emotional time. If there are children involved, the feelings of hurt and anger can be magnified.

However, this is the time when your children need you to be at your most level headed. It is always advisable to resolve differences without going to court if possible. Whilst it may not be possible in every case, settling issues such as time spent with the children and where the children are going to live without appearing in front of court, can be the best way to re-start your separate lives whilst maintaining as close to a family unit as you can.

Who has Parental Responsibility?

You may need to know one or two points of law before you begin discussions. If you are coming out of a marriage, it is important to remember that both parents have parental responsibility if you were married at the time of the child’s birth. If you were not married when the child was born, parental responsibility is automatically given to the mother. However, unmarried fathers who register or re-register their name on their child’s birth certificate after 1 December 2003 will also have parental responsibility for their child.

Note that if the child was born before 1 December 2003, the father will not have automatic parental responsibility, unless obtained by other means such as a court order.

Parents can agree to share parental responsibility at any time during their relationship or separation by agreeing to a parental responsibility agreement.

Agreeing on what to discuss

Before you consider discussing who is going to live where with the children, it is advisable to talk with the other parent in a calm and reasonable manner. At this point it should be remembered that whatever is decided must be for the benefit of the children, both in the short and long term. There will be several points to consider which include:

• who the children will live with
• how you will ensure that the children will spend reasonable time with the other parent
• the days and times that the children will spend with each parent
• how holidays will be divided, including Christmas and school holidays
• how the children will be taken to activities, school, and friends’ houses.

Making a plan and sticking to it

Not all parents are able to communicate in a calm and rational manner, especially if the separation has been acrimonious. Often, the emotional impact of a separation can make face to face communication next to impossible. However, there are still options available including emails, text messages, telephone calls, or even asking a mutual friend or family member to act as the go between, until the relationship is in a better state.

In the event that agreements can be reached, parents might want to record their decisions in the form of a parenting plan. This is not a legally enforceable document, but can be a good tool to help both parties set out what they intend to agree between them.

A parenting plan can be turned into a legally binding document, thereby protecting the interests of everyone involved, particularly the children. You would need to use the services of a Family Law solicitor, who would advise you upon the procedure involved. Making the plan legal is the ideal way to hopefully prevent future difficulties.

Mediation

If sitting and talking with the other parent is more destructive than constructive, you may wish to consider using a mediator to resolve any issues you have. Mediators are not qualified to offer legal advice, they are there to encourage an environment in which both parents have the opportunity to raise their concerns safely and without the stress of appearing in front of a court.

However, if court proceedings are unavoidable and an application is made to the Family Court, the focus is always on the best interests of the children. The court will consider any relevant welfare issues such as the wishes and feelings of the children, the physical, emotional and educational needs of the children and the likely effect that any change in circumstances may have on the children, before an appropriate order is made.

The breakup of a family unit stressful for everyone involved, but for the children most of all. If you can agree on issues between you, then this is the best course of action. If you do require any assistance in putting together a plan and formalising that plan by way of a legally binding document, or alternatively, if you are unable to agree matters amicably between you, then you will need to seek advice from a Family Law solicitor.